Under the U.S Supreme Court: To sniff or not to sniff

WASHINGTON, June 24 (UPI) -- The U.S. Supreme Court goes to the dogs next term in two Florida cases involving police canines named Franky and Aldo, and the question: To sniff or not to sniff?

Creaky groaners aside, the cases deal with a serious issue. The security of Americans in their homes and vehicles versus how far police can go when using dogs to determine the presence of drugs or other contraband.

At stake is not just whether police can use a very effective tool to investigate and arrest felons, but the limits on law enforcement when it subjects anyone, guilty or innocent, to invasive sniffing or other types of surveillance.

Supreme Court precedent on police snooping around the home might appear to be all over the map, but it does have a certain logic.

In 2001's Kyllo vs. U.S., the high court ruled 5-4 police intrusion has limits. A federal government agent used a "thermal imaging device" to scan a triplex in Florence, Ore., without a warrant to determine whether marijuana was being grown.

The scan showed Danny Kyllo's garage was hot compared to the rest of his home and the neighborhood, consistent with the high-intensity lamps typically used for indoor marijuana growing. A federal appeals court ruled the scan constitutional, saying Kyllo had shown no expectation of privacy.

But the Fourth Amendment bans unreasonable searches and seizures.

The Supreme Court majority opinion, written by Justice Antonin Scalia, reversed the appeals court, saying when the "government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment 'search,' and is presumptively unreasonable without a warrant."

In 2005's Illinois vs. Caballes, the high court ruled 5-3 (a seriously ill Chief Justice William Rehnquist took no part in the case) it was constitutional to make a vehicle search when a drug-sniffing dog alerts officers to contraband during a routine traffic stop.

Justice John Paul Stevens, in the majority opinion, said the ruling "is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. ... Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as 'at what hour each night the lady of the house takes her daily sauna and bath.' .... The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the non-detection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."

"I would hold that using the dog for the purposes of determining the presence of marijuana in the car's trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground," he said.

In one of the canine Florida cases coming up next term, the justices are being asked to decide whether allowing a dog to drug-sniff at the front door of a suspected grow house "is a Fourth Amendment search requiring probable cause."

"Probable cause" to suspect a crime is the threshold allowing a police officer to make an arrest, conduct a search or request a warrant from a judge.

The Fourth Amendment of the U.S. Constitution says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Florida's Constitution reinforces that right in almost identical language, and includes a ban "against the unreasonable interception of private communications by any means."

In November 2006, the Miami-Dade Police Department received a Crime Stoppers tip that Joelis Jardines was growing marijuana in his house. A month later, a police detective with members of a drug task force that included several U.S. Drug Enforcement Agency agents conducted surveillance at Jardines' house.

A canine officer went up to the front porch with Franky, who alerted by sitting down. After the dog left, the detective knocked on the door to get consent for a search, without response. He did smell marijuana, court records said, and heard the sound of a constantly running air conditioner -- in the officer's experience, a sign of a drug operation.

Using the dog sniff and his own observations, a detective got a search warrant. The officers conducted a search and "seized numerous live marijuana plants. A DEA agent arrested Jardines as he attempted to flee through a rear door of the house," the state's petition to the Supreme Court said.

Jardines was charged with trafficking in excess of 25 pounds of cannabis, a first-degree felony, and grand theft for stealing more than $5,000 in electricity from Florida for the grow lights.

His lawyer argued the dog sniff and the detective's sniff violated the Fourth Amendment. The trial judge granted a motion to suppress the evidence, saying the initial search was illegal.

Though an intermediate court reversed, the Florida Supreme Court also suppressed the evidence, relying on the Supreme Court's decision in Illinois vs. Caballes. Where was the probable cause?

"First, the dog 'sniff test' that was conducted in the present case was an intrusive procedure," the state supreme court said. " ... [T]he 'sniff test' was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity -- i.e., the preparation for the 'sniff test,' the test itself and the aftermath, which culminated in the full-blown search of Jardines' home -- lasted for hours. The 'sniff test' apparently took place in plain view of the general public. There was no anonymity for the resident.

"Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many -- neighbors, passers-by and the public at large -- will be viewed as an official accusation of crime," the state court opinion said. "Further, if government agents can conduct a dog 'sniff test' at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a 'sniff test,' such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing."

State officials told the U.S. Supreme Court in a brief besides ignoring Caballes, the Florida Supreme Court created "a new test for whether officers' conduct is a search. Seeking to avoid applying Caballes, the Florida Supreme Court fashioned a new test which focused on the surrounding circumstances rather than properly on the dog sniff itself. This new test, however, violates a plethora of this [U.S. Supreme] Court's Fourth Amendment cases. This court should disavow the Florida Supreme Court's newly formulated Fourth Amendment test."

The other Florida dog case involves a valid traffic stop. Clayton Harris was stopped in Liberty County by a sheriff's deputy canine officer for driving on an expired license. The officer's dog Aldo sniffed and alerted for drugs on the driver's side, causing the deputy to search the interior of the car.

The deputy said he discovered supplies to manufacture methamphetamine, which Harris admitted to making and using, the state said in a brief. After his lawyer's motion to suppress the evidence at trial was denied, Harris pleaded no contest and was convicted of possessing the restricted chemical pseudoephedrine with intent to use it to manufacture methamphetamine, in violation of state law.

But the Florida Supreme Court eventually ruled evidence that a dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for determining probable cause. State officials said the Florida court relied heavily on law review articles and an intermediate appellate court's decision in another case, which concluded that an officer who knows that his dog is trained and certified can only suspect that a search based on a dog's alert will yield contraband, and mere suspicion cannot justify a search.

By holding a dog alerting to the residual odor of contraband may result in subjecting a person and vehicle to an invasive search when there are no drugs actually present, state officials said, the Florida Supreme Court rejected the U.S. Supreme Court's interpretation of the Fourth Amendment that a dog sniff is not a search as it only reveals the presence of contraband.

The Florida Supreme Court thus effectively negated "the narcotics detection dog as an important crime fighting tool for law enforcement and society," state officials said.

Neither case has been scheduled for argument, but will probably be heard some time before Christmas.

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